We granted leave to appeal to address the following questions: (1) whether parking lots in leased residential areas constitute "common areas" under MCL 554.139(1)(a); (2) whether the natural accumulation of snow and ice is subject to the lessor's duty set forth in MCL 554.139(1)(a) to keep premises and common areas "fit for the use intended by the parties"; and (3) whether the natural accumulation of snow and ice is subject to the lessor's duty set forth in MCL 554.139(1)(b) to "keep the premises in reasonable repair." We answer the first two questions in the affirmative and the third question in the negative. Because we conclude that the duty set forth in MCL 554.139(1)(a) was not violated here because one to two inches of snow did not render the parking lot unfit for the use intended,
I. FACTS AND PROCEDURAL HISTORY
Plaintiff fractured his ankle during a fall when he was walking on one to two inches of accumulated snow in the parking lot of his apartment complex. He then noticed ice on the ground where the snow had been displaced. Plaintiff filed suit against defendant AEW Capital Management, doing business as Sutton Place Apartments, alleging negligence and breach of the covenant to maintain and repair the premises, MCL 554.139(1). The trial court granted summary disposition to defendant, concluding that the danger was "open and obvious," and directed that the pleadings be amended to replace AEW with the proper defendants, Village Green Management Company and BFMSIT, II.
The Court of Appeals affirmed the trial court's ruling on the basis of Teufel v. Watkins, 267 Mich.App. 425, 429 n. 1, 705 N.W.2d 164 (2005), which held that MCL 554.139(1) does not control a lessor's duty to remove snow and ice from a parking lot. Unpublished opinion per curiam, issued November 28, 2006 (Docket No. 269021). The panel expressed its disagreement with Teufel and sought a conflict resolution panel. Id. After this request was denied, the panel granted plaintiff's motion for reconsideration and vacated its initial opinion. Unpublished order, entered January 19, 2007 (Docket No. 269021). The panel then reversed the trial court's grant of summary disposition, stating that Teufel did not constitute governing precedent because its holding regarding the inapplicability of MCL 554.139(1) was only presented in a footnote. Allison v. AEW Capital Mgt., LLP (On Reconsideration), 274 Mich.App. 663, 669-670, 736 N.W.2d 307 (2007). The panel also concluded that a parking lot constitutes a common area under MCL 554.139(1)(a), that one of a parking lot's intended uses entails persons walking on it, and that a parking lot covered with ice is not fit for that purpose. Id. at 670-671, 736 N.W.2d 307. Defendants filed an application for leave to appeal in this Court, and we granted leave to appeal. 480 Mich. 894, 738 N.W.2d 757 (2007).
II. STANDARD OF REVIEW
This Court reviews de novo the grant or denial of a summary disposition motion. Saffian v. Simmons, 477 Mich. 8, 12, 727 N.W.2d 132 (2007). Matters of statutory interpretation are also reviewed de novo. Id. Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). A motion under MCR 2.116(C)(8) should be granted if the pleadings fail to state a claim as a matter of law, and no factual development could justify recovery. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). A motion under MCR 2.116(C)(10) should be granted if the evidence submitted by the parties "fails to establish a genuine issue regarding any material fact, [and] the moving party is entitled to judgment as a matter of law." Id. at 120, 597 N.W.2d 817; see also MCR 2.116(C)(10). There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).
Plaintiff asserted two different causes of action in this case: (1) negligence and (2) breach of the covenants to keep the premises and common areas fit for their intended use and to keep the premises in
A. "COMMON AREAS"
MCL 554.139 provides:
The primary goal of statutory interpretation is "to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute." G.C. Timmis & Co. v. Guardian Alarm Co., 468 Mich. 416, 420, 662 N.W.2d 710 (2003). If the language of the statute is clear, we presume that the Legislature
MCL 554.139 does not define the term "common areas." However, Black's Law Dictionary (6th ed), p 275, defines "common area" as: "[i]n law of landlord-tenant, the portion of demised premises used in common by tenants over which landlord retains control (e.g. hallways, stairs) and hence for whose condition he is liable, as contrasted with areas of which tenant has exclusive possession." This definition is in accord with the plain and ordinary meaning of the term. "Common" is defined as "belonging equally to, or shared alike by, two or more or all in question[.]" Random House Webster's College Dictionary (1997). Therefore, in the context of leased residential property, "common areas" describes those areas of the property over which the lessor retains control that are shared by two or more, or all, of the tenants. A lessor's duties regarding these areas arise from the control the lessor retains over them. See, e.g., Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 499, 418 N.W.2d 381 (1988) (stating that "a landlord may be held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of common use retained in his control such as lobbies, hallways, stairways, and elevators").
The issue in this case concerns whether parking lots within leased residential property constitute "common areas" within the meaning of the statute. The Court of Appeals answered in the affirmative, relying on Benton v. Dart Properties, Inc., 270 Mich.App. 437, 715 N.W.2d 335 (2006), to conclude that parking lots constitute common areas. In Benton, supra at 442-443, 715 N.W.2d 335, the Court of Appeals held that sidewalks within an apartment complex constitute common areas under MCL 554.139(1)(a) because they are located within the complex, they are constructed and maintained by the lessor, and they are relied on by tenants to access their apartments and vehicles. In this case, the Court of Appeals adopted this reasoning to conclude that parking lots also constitute common areas because they are located within the complex, they are maintained by the lessor, and tenants must necessarily walk on parking lots to access their vehicles. Allison, supra at 670, 736 N.W.2d 307.
We agree that a parking lot within a leased residential property fits within the meaning of "common area" because it is accessed by two or more, or all, of the tenants and the lessor retains general control. Among other things, the lessor controls whether a parking lot is used by members of the public as well as by tenants, the circumstances under which non-tenants can access the lot, the number and size of vehicles that a tenant can park in the lot, the lot's hours of operation, the means of identification of those entitled to park in the lot, and whether and how particular parking spaces will be allocated. Further, the lessor is responsible for the maintenance and security of the lot. Thus, we believe that parking lots within a leased residential property that are shared by two or more, or all, of the tenants constitute "common areas" under MCL 554.139(1)(a).
B. LESSOR'S DUTY UNDER MCL 554.139(1)(a)
Because a parking lot within a leased residential property is a common
We agree that the intended use of a parking lot includes the parking of vehicles. A parking lot is constructed for the primary purpose of storing vehicles on the lot. "Fit" is defined as "adapted or suited; appropriate[.]" Random House Webster's College Dictionary (1997). Therefore, a lessor has a duty to keep a parking lot adapted or suited for the parking of vehicles. A parking lot is generally considered suitable for the parking of vehicles as long as the tenants are able to park their vehicles in the lot and have reasonable access to their vehicles. A lessor's obligation under MCL 554.139(1)(a) with regard to the accumulation of snow and ice concomitantly would commonly be to ensure that the entrance to, and the exit from, the lot is clear, that vehicles can access parking spaces, and that tenants have reasonable access to their parked vehicles. Fulfilling this obligation would allow the lot to be used as the parties intended it to be used.
In this case, in construing the meaning of these terms in the contract, neither of the parties has indicated that the intended use of the parking lot was anything other than basic parking and reasonable access to such parking. Plaintiff's allegation of unfitness was supported only by two facts: that the lot was covered with one to two inches of snow and that plaintiff fell. Under the facts presented in this record, we believe that there could not be reasonable differences of opinion regarding the fact that tenants were able to enter and exit the parking lot, to park their vehicles therein, and to access those vehicles. Accordingly, plaintiff has not established that tenants were unable to use the parking lot for its intended purpose, and his claim fails as a matter of law.
While a lessor may have some duty under MCL 554.139(1)(a) with regard to the accumulation of snow and ice in a parking lot, it would be triggered only under much more exigent circumstances than those obtaining in this case. The statute does not require a lessor to maintain a lot in an ideal condition or in the most accessible condition possible, but merely requires the lessor to maintain it in a condition that renders it fit for use as a parking lot. Mere inconvenience of access, or the need to remove snow and ice from parked cars, will not defeat the characterization of a lot as being fit for its intended purposes.
We recognize that tenants must walk across a parking lot in order to access their vehicles. However, plaintiff did not show that the condition of the parking lot in this case precluded access to his vehicle. The Court of Appeals erred in concluding that, under the facts presented, the parking lot in this case was unfit simply because it was covered in snow and ice.
C. LESSOR'S DUTY UNDER MCL 554.139(1)(b)
The final question concerns whether a lessor's duty to repair under MCL 554.139(1)(b) extends to snow and ice accumulation in a parking lot. We must distinguish the term "common areas" from the term "premises" if we are to give meaning to all the words of this statute. The lessor's duty under MCL 554.139(1)(a) applies to "the premises and all common areas," while the lessor's duty under MCL 554.139(1)(b) applies only to "the premises." We must "avoid a construction that would render any part of the statute surplusage or nugatory." Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 60, 631 N.W.2d 686 (2001).
"Premises" is defined as "a tract of land including its buildings" or "a building or part of a building together with its grounds or other appurtenances[.]" Random House Webster's College Dictionary (1997). Such a definition would seem to include everything within the boundaries of the apartment complex, including the common areas. However, a statute can give special meaning to a word apart from its everyday use. Under the doctrine of noscitur a sociis, a word is also given meaning in the context of the words around it. Koontz, supra at 318, 645 N.W.2d 34.
In this statute, the Legislature specifically set the term "common areas" apart from the term "premises" by applying the first covenant to both terms and the second covenant only to "premises." If we conclude that "premises" includes "common areas," then the phrase "and all common areas" would be entirely superfluous. The only way to give meaning to the phrase "and all common areas" in this context is to conclude that "premises" does not encompass "common areas" and that the covenant to repair under MCL 554.139(1)(b) does not apply to "common areas."
In Teufel, supra at 429 n. 1, 705 N.W.2d 164, the Court of Appeals held:
This is an accurate assessment of the requirement of "reasonable repair" in MCL 554.139(1)(b). "Defect" is defined as "a fault or shortcoming; imperfection." Random House Webster's College Dictionary (1997). Damage to the property would constitute an imperfection in the property that would require mending. Therefore, repairing a defect equates to keeping the premises in a good condition as a result of restoring and mending damage to the property. The accumulation of snow and ice does not constitute a defect in property, and, therefore, the lessor would have no duty under MCL 554.139(1)(b) with regard to snow and ice, except to the extent
This conclusion can be analogized to the government's duty to maintain highways in reasonable repair under MCL 691.1402(1), the highway exception to governmental immunity. In Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 158, 615 N.W.2d 702 (2000), this Court held that the "highway exception waives the absolute immunity of governmental units with regard to defective highways under their jurisdiction." To recover under MCL 691.1402(1), a plaintiff must demonstrate that a defect in the highway was the proximate cause of the plaintiff's injury. Haliw v. Sterling Hts., 464 Mich. 297, 309 n. 9, 627 N.W.2d 581 (2001). In Haliw, this Court specifically excluded the accumulation of snow and ice from consideration as a defect. Id. More recently, in MacLachlan v. Capital Area Transportation Auth., 474 Mich. 1059, 711 N.W.2d 14 (2006), this Court held that an accumulation of snow in the roadway did not constitute a "defect in the roadway rendering it unsafe for public travel at all times."
We hold that the lessor's duty to repair under MCL 554.139(1)(b) does not apply to common areas and, therefore, does not apply to parking lots. In addition, MCL 554.139(1)(b) requires the lessor to repair defects in the premises, and the accumulation of snow and ice is not a defect. A lessor has no duty under MCL 554.139(1)(b) with regard to the natural accumulation of snow and ice.
D. TEUFEL AS PRECEDENT
The Court of Appeals on reconsideration stated that the holding in Teufel, supra at 429 n. 1, 705 N.W.2d 164, was legally flawed for failing to distinguish, or even mention, O'Donnell v. Garasic, 259 Mich.App. 569, 676 N.W.2d 213 (2003), and for failing to conduct a separate analysis of MCL 554.139(1)(a) and (b). Allison, supra at 668-669, 736 N.W.2d 307. The Court proceeded to observe that it was not bound to follow the discussion of MCL 554.139(1)(a) and (b) in Teufel because, "[h]ad [the] Court in Teufel intended to create a rule of law regarding the availability of the open and obvious danger doctrine when a landlord has a statutory duty under MCL 554.139(1)(a) and (b), it would have done so in the body of the opinion rather than in a footnote." Id. at 669-670, 736 N.W.2d 307, citing Guerra v. Garratt, 222 Mich.App. 285, 289-292, 564 N.W.2d 121 (1997).
The Court's reference to Guerra was misplaced. Guerra did not state that language set forth in a footnote does not constitute binding precedent. Rather, in Guerra, the Court of Appeals was attempting to interpret whether certain language in Lemmerman v. Fealk, 449 Mich. 56, 77 n, 15, 534 N.W.2d 695 (1995), was meant to limit the retroactivity of the opinion's general holding or to create an exception to that holding. Guerra, supra at 291, 564 N.W.2d 121. The Court engaged in ordinary interpretative analysis, examining the circumstances and the context in order to properly give meaning to the language. The Court of Appeals concluded that, given the fact that Lemmerman repeatedly set forth its general holding without suggesting any exception and specifically made a statement incompatible with such an exception, this Court would have placed any such exception to the general holding, if it had been intended, in the body of the opinion. Id. at 291-292, 564 N.W.2d 121. Therefore, the Court of Appeals determined that the footnote pertained to the retroactivity of the holding, and did not create an exception to that holding. The statement in Guerra regarding the Lemmerman footnote was merely an analysis of the context of language within a footnote
The essential question is not whether the language in Teufel was contained within a footnote, but whether it created a "rule of law" for the purposes of MCR 7.215(J)(1).
In Teufel, the plaintiff slipped and fell on ice in the parking lot of his apartment complex. Teufel, supra at 426, 705 N.W.2d 164. The Court of Appeals held that the trial court properly granted summary disposition to the defendant apartment complex on the basis of the "open and obvious" danger doctrine. Id. at 428-429, 705 N.W.2d 164. The language in the Teufel footnote was not dictum; rather, the footnote addressed an alternative argument raised by the plaintiff regarding the applicability of MCL 554.139 and was, therefore, necessary to the disposition of the case. Thus, the language in the footnote constituted a rule of law, and the Court of Appeals was obligated to follow this rule under MCR 7.215(J)(1).
The Court of Appeals' concern that Teufel itself did not follow the precedent of O'Donnell was without merit. In O'Donnell, supra at 581, 676 N.W.2d 213, the Court of Appeals held that a defendant cannot use the "open and obvious" danger doctrine to avoid liability when the defendant has a statutory duty to maintain the premises in accordance with MCL 554.139(1)(a) and (b). However, the Teufel footnote held that MCL 554.139(1)(a) and (b) do not apply to snow and ice removal. Therefore, the "open and obvious" danger doctrine could avoid the defendants' liability in Teufel, and there was no need to refer to, nor was there any inconsistency with, O'Donnell.
Language set forth in a footnote can constitute binding precedent if the language creates a "rule of law" and is not merely dictum. Teufel, supra at 429 n. 1, 705 N.W.2d 164, created a rule of law that the Court of Appeals was bound to follow. MCR 7.215(J)(1). However, to the extent that Teufel held that a lessor's duty to maintain premises and common areas "fit for the use intended" under MCL 554.139(1)(a) can never include snow and ice removal, we overrule Teufel. There are conceivable circumstances in which a lessor may have a duty to remove snow and ice under MCL 554.139(1)(a), such as when the accumulation is so substantial that tenants cannot park or access their vehicles in a parking lot. As we have already observed, such circumstances were not present in this case. The Court of Appeals erred in reversing the trial court's order granting summary disposition in favor of defendants under the "open and obvious" danger doctrine.
We hold that: (1) parking lots in leased residential areas constitute "common areas"
TAYLOR, C.J., WEAVER, CORRIGAN and YOUNG, JJ., concur.
CORRIGAN, J. (concurring).
I concur in the result and virtually all of the reasoning of the majority opinion. In particular, I agree that (1) sidewalks and parking lots in leased residential areas are "common areas" under MCL 554.139(1)(a); (2) the natural accumulation of ice and snow is not subject to the lessor's duty under MCL 554.139(1)(b) to "keep the premises in reasonable repair"; and (3) the Court of Appeals erred in concluding that language in the footnote in Teufel v. Watkins, 267 Mich.App. 425, 429 n. 1, 705 N.W.2d 164 (2005), could not constitute binding precedent.
My sole area of disagreement with the majority concerns its analysis of whether a lessor's duty to keep the premises and common areas "fit for the use intended by the parties," MCL 554.139(1)(a), obligates the lessor to remove natural accumulations of snow and ice. The majority correctly observes that the parking lot here was "fit for the use intended by the parties" where only one to two inches of snow had accumulated. Yet the majority goes on to state that in "more exigent circumstances" a natural accumulation of snow or ice could trigger the statutory duty. Not only is this conclusion unnecessary to the disposition of this case, but I believe it is founded on an erroneous analysis.
MCL 554.139(1) provides in part:
The majority resorts to a lay dictionary to define "fit" as "adapted or suited; appropriate[.]" Ante at 14, citing Random House Webster's College Dictionary (1997). The majority then concludes that in some unspecified "exigent circumstances," ante at 14, a natural accumulation of ice or snow could render the parking lot unfit for its intended use.
The majority's analysis hinges on its implicit view that the duty to keep the parking lot itself fit extends to transient conditions such as natural accumulations of snow or ice. This assumption overlooks a fair reading of the statutory text limiting the duty of fitness to the physical structure of the premises and common areas.
While a court may use a lay dictionary to define common words or phrases that lack a unique legal meaning, MCL 8.3a; People v. Thompson, 477 Mich. 146, 151-152, 730 N.W.2d 708 (2007), I would not assume that the terms used in MCL 554.139 lack an acquired legal meaning. Indeed, it appears that the statute codifies the implied warranty of habitability, and that this warranty does not protect against transient conditions such as ice or snow.
The duties set forth in MCL 554.139 are directed at ensuring that the premises are habitable. The statute was enacted "`to establish as a matter of law the landlord's promissory duty to make the premises fit for habitation at the time of taking possession and throughout the term of period of tenancy.'" Rome v. Walker, 38 Mich.App. 458, 462 n. 3, 196 N.W.2d 850 (1972), quoting Schier, Draftsman: Formulation of Policy, 2 Prospectus, A Journal of Law Reform 227, 233 (1968) (emphasis added).
"At common law, a landlord generally had no duty to provide a habitable rental property." 49 Am. Jur. 2d, Landlord and Tenant, § 447, p. 455. See also Fisher v. Thirkell, 21 Mich. 1, 6-7 (1870). That traditional rule was abrogated as a majority of jurisdictions adopted, either by common law or by express statutory provision, an implied warranty of habitability. 49 Am. Jur. 2d, Landlord and Tenant, § 447, p. 455.
"An implied warranty of habitability requires that a dwelling be fit for its intended use; that is, it should be habitable and fit for living." 52 C.J.S., Landlord & Tenant, § 687, p. 607 (emphasis added). The warranty is breached where a "defect" exists that is "of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers." 49 Am. Jur. 2d, Landlord and Tenant, § 450, p. 459 (emphasis added). This implied warranty extends to common areas. See id., § 447, p. 455. A reasonable inference arises from the language of MCL 554.139(1)(a) ("fit for the use intended by the parties") that it codifies the implied warranty of habitability.
The warranty of habitability extends only to "significant, structural defects" that "render the premises uninhabitable in the eyes of a reasonable person." 52 C.J.S., Landlord & Tenant, § 687, p. 607. The natural accumulation of ice or snow is not such a defect. Id. at 607 n. 12; McAllister v. Boston Housing Auth., 429 Mass. 300, 306, 708 N.E.2d 95 (1999). The warranty extends only to "significant defects in the property itself." McAllister, supra at 305, 708 N.E.2d 95.
In any event, the majority's analysis of this issue is unnecessary to the disposition of this case. As the majority correctly concludes, the one to two inches of accumulated precipitation in this case did not render the parking lot unfit for its intended use. We thus need not speculate regarding whether a greater accumulation would, in some unspecified "exigent circumstances," trigger the statutory duty.
For these reasons, I cannot join the majority's analysis in full. In all other respects, I concur in the reasoning and conclusions set forth in the majority opinion.
MICHAEL F. CAVANAGH, J. (dissenting).
I agree with the majority's conclusions under MCL 554.139(1)(a) that a parking lot is a common area, the intended use of a parking lot includes walking to and from parked vehicles, accumulations of ice and snow may be subject to a landlord's duties under § 139(1)(a), and the "open and obvious danger" doctrine is inapplicable to the duty created by the statute.
I believe that plaintiff has made a sufficient showing to survive summary disposition under § 139(1)(a). Section 139(1) provides that, in every lease or license of residential premises, a landlord has a duty to ensure that premises and common areas are fit for use, to keep the premises in reasonable repair, and to comply with health and safety laws. Review of a claim under § 139(1) requires a determination of where the claimed injury took place. If the injury occurred in a common area, § 139(1)(a) requires review of the parties' intended use for the common area and the area's fitness for that use.
In this case, plaintiff was defendant's tenant and suffered injury in defendant's apartment complex parking lot. The parking lot was a common area. Its intended use included parking vehicles, which includes walking to and from the vehicle. Plaintiff was walking to his vehicle when he slipped and fell; therefore, he was using the parking lot as the parties intended when he was injured.
The concept of fitness for use includes safety. The Second Restatement of Torts states:
Specifically in landlord and tenant law, this Court has stated that "a landlord may be held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of common use retained in his control. . . ." Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 499, 418 N.W.2d 381 (1988). The Williams Court reasoned:
So § 139(1)(a), requiring fitness, imposes a duty on the landlord to ensure that common areas are safe for their intended use. Whether a common area is sufficiently safe to be fit for its intended purpose depends on the condition of the area in question.
There appears to be some confusion about the condition of defendant's parking lot at the time of plaintiff's injury. The Court of Appeals described the condition as "[a] parking lot covered with ice,"
Plaintiff testified that when he left his apartment for work on the morning of March 13, 2003, the entire area was covered with "maybe an inch or two" of snow that had accumulated overnight. He stepped down the two stairs of his porch, walked down the sidewalk to the parking lot, and then began walking across the parking lot toward his car. After walking about 20 feet across the parking lot toward his car, plaintiff slipped and fell. In deposition testimony, plaintiff described how he fell: "I just take the step and then my foot
The majority states that "[m]ere inconvenience" does not make a common area unfit for its intended use. Ante at 14. But the ice-covered surface of defendant's parking lot presented a much greater danger to plaintiff than mere inconvenience. Plaintiff's fall on ice in defendant's parking lot caused severe injury. Plaintiff's fractured ankle required extensive surgery. Plaintiff was not able to return to work for three months following surgery. In deposition testimony two years after the injury, plaintiff stated, "I always have pain and restrictions . . . I have pain in my ankle every day." Further, plaintiff is subject to ankle "re-sprains" three or four times a week. I would not call the condition plaintiff faced a mere inconvenience. And I would not call a common area that presented such a danger fit for its intended use.
The majority states that the parking lot was fit for its intended use because "tenants were able to enter and exit the parking lot, to park their vehicles therein, and to access those vehicles." Ante at 14. I am unaware of any evidence to support this conclusion. The only fact established on this point is that plaintiff was not able to access his vehicle without injury. The majority concludes that the parking lot was fit for its intended use when plaintiff fell because "plaintiff did not show that the condition of the parking lot in this case precluded access to his vehicle." Ante at 14. But, as mentioned, access to vehicles must be safe in order to be fit. Plaintiff could access his vehicle only by risking serious injury.
A landlord's duty to provide safe common areas does not preclude a tenant's duty to take steps within his control to keep himself safe. The trial court intimated as much when it opined on the proper method of walking on ice: "I suggest that — I call it the Michigan shuffle, but you don't necessarily walk; you do the skating." Contrary to the apparent perception of the trial court, plaintiff testified in deposition that he took every reasonable precaution: he was wearing boots specifically made for walking on snow, he watched where he was going, and he proceeded with great care when crossing the parking lot. Despite his best efforts to attend to his safety by means within his control, he was injured. At this pretrial stage, I believe that plaintiff has raised a genuine issue of fact concerning whether the parking lot was unfit. Thus, summary disposition is inappropriate.
If a plaintiff is able to show that a common area is not fit for its intended use, the reasonableness of the landlord's actions to remedy the unfit condition should also be assessed. "[A] contract to keep the premises in safe condition subjects the lessor to liability only if he does not exercise reasonable care after he has had notice of the need of repairs. In any case his obligation is only one of reasonable care." 2 Restatement Torts, 2d., § 357, comment d, pp. 242-243. In this case, if the parking lot is found unfit, there is a valid question whether defendant exercised reasonable care to remedy the unfit condition. I would remand the case to the trial court for further inquiry into these matters under the proper legal standards.
I generally agree with the majority's analysis (if not its application) of § 139(1)(a), but I believe the majority has unnecessarily reached several issues. These matters are not necessary to the majority's disposition of the case; thus, they are dicta. Nonetheless, I disagree with several of these extraneous conclusions. First, because the majority holds that defendant is entitled to summary disposition, there is no need to determine plaintiff's potential remedy. However, I would hold that a plaintiff who proves a claim under MCL 554.139(1) is entitled to full damages for the injury. The Second Restatement of Torts, § 357, states:
The comments to that section state that "the duty arises out of the existence of the contract to repair." Id., comment d, p. 242. The comments further state that "[t]he lessor's duty under the rule stated in this Section is not merely contractual, although it is founded upon a contract. It is a tort duty." Id., § 357, comment c, p. 242. There is no reason this liability should not apply under MCL 554.139(1). Indeed, it should apply because the statute's very purpose is to provide safety in areas outside the tenant's control. Williams, supra at 499, 418 N.W.2d 381 ("duty to protect is imposed upon the person in control because he is best able to provide a place of safety").
Also, because this case involves a tenant only, there is no reason to address a landlord's liability to nontenants under § 139(1). However, I believe the majority incorrectly asserts that a nontenant could never recover under the covenant for fitness because a lessor has no contractual relationship with a nontenant. The Second Restatement of Torts, § 357, states that "[a] lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with consent of the lessee. . . ." Id. at 241 (emphasis added). Additionally, I believe the intended use of a parking lot in an apartment complex will generally include, at minimum, parking (and walking) for a tenant's guests. An apartment is a tenant's home. It is likely that both parties to an apartment lease intend the parking lot to be used by guests as well as tenants.
The trial court in this case found that § 139(1) did not apply and the open and obvious danger doctrine did apply. The majority determines that § 139(1) applies and the open and obvious danger doctrine does not. I agree with that determination, but I would affirm the result of the Court of Appeals and remand this case to the trial court for further proceedings under the proper legal standards.
MARILYN KELLY, joins the dissent.
The dissent "would hold that a plaintiff who proves a claim under MCL 554.139(1) is entitled to full damages for the injury," citing the Second Restatement of Torts, § 357, which states that "`[a] lessor of land is subject to liability for physical harm caused to his lessee . . . if the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair. . . .'" Post at 24. This section of the Second Restatement of Torts applies to the tort of negligence. We reiterate that the merits of plaintiff's negligence claim are not before this Court. In addition, as discussed infra, the covenant to repair, MCL 554.139(1)(b), does not apply to common areas and would not impose a duty on the lessor to keep parking lots free from the natural accumulation of ice and snow.